Corporate Manslaughter and Corporate Homicide Act update

01/04/2009

By Douglas Skilton, Associate in Dispute Resolution.

The Corporate Manslaughter and Corporate Homicide Act came into force on 6 April 2008.

The Act creates the new offence of corporate manslaughter to replace the common law offence of involuntary manslaughter by means of gross negligence (so far as it applies to corporations), which has been difficult to apply successfully in the prosecution of companies. The difficulty in applying the law on manslaughter to companies arose because of the need to find a senior manager of a company personally guilty of gross negligence manslaughter before the company itself could be convicted.

Currently, an individual can be convicted of gross negligence manslaughter if he or she breaches a duty of care owed to a victim which results in the victim's death. The breach of the relevant duty of care must, when viewed objectively, be serious enough to amount to gross negligence.

A company could only be convicted of gross negligence manslaughter if a "directing mind" (a senior manager whose actions and decisions embody those of the company) was also personally guilty of gross negligence manslaughter. This is referred to as the "identification principle" and the difficulty in being able to establish individual culpability made it particularly hard to prosecute large companies for gross negligence manslaughter.

The new offence of corporate manslaughter set out in the Act is designed to overcome the difficulties created by the identification principle by providing a new test that focuses on senior management failures generally. The arrangements and practices put in place for carrying out the organisation's work are taken into consideration, rather than focusing on any individual act of negligence by a "directing mind".

The new offence applies to companies, partnerships and other incorporated bodies, including certain government departments and the police force; it targets the liability of organisations and not individual directors or partners. However, individuals remain liable to prosecution for gross negligence manslaughter in accordance with the existing laws.

An organisation will be guilty of the new offence of corporate manslaughter if the way in which its "senior management" manages or organises its activities causes a person's death and is a gross breach of a duty of care the organisation owed to that person. The organisation's conduct will be assessed by a jury having regard to the extent to which it breached any Health and Safety legislation. Evidence showing that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged or tolerated those breaches will also be relevant.

The definition of "senior management" incorporates two strands of management responsibilities. Firstly, the making of decisions about how activities are managed or organised, and secondly, the actual management or organisation of those activities.

The new offence will be tried in the Crown Court where Judges have the power to impose unlimited fines on an organisation found guilty of corporate manslaughter. Judges will also have power to make Remedial Orders to force organisations to take steps to remedy the management failures that led to the manslaughter. Publication Orders can also be made requiring the circumstances of the case to be publicised in the local or national press.

The Act will have a significant impact on organisations caught by its provisions. This is particularly the case with respect to larger companies which have previously evaded responsibility for gross negligence manslaughter through the absence of a “directing mind”. Nevertheless, for directors and senior managers of any organisation there is still a risk of being personally prosecuted for manslaughter if their gross negligence causes a death. Businesses should review their policies and procedures to ensure that they comply with Health and Safety legislation and take specialist legal advice in the event of any workplace related death.